The Prevention of Corruption Act, 1988: Introduction, Object and Scope

The Prevention of Corruption Act, 1988 is the principal Indian statute on bribery and the abuse of public office. Its long title states its purpose, which is to consolidate and amend the law relating to the prevention of corruption. Before it, the subject was spread across the Indian Penal Code, 1860, the Prevention of Corruption Act, 1947 and the Criminal Law (Amendment) Act, 1952, and the 1988 Act brought all three together, widened the definition of public servant, enhanced the punishments and provided for trial by special judges. It was substantially recast by the amendment of 2018, which redefined the central offences around the concept of undue advantage, criminalised the giving of a bribe, and introduced a requirement of prior approval before a public servant may be investigated.

1. The Object

The Act received the assent of the President on 9 September 1988. Its object, as the long title and the statement of objects and reasons show, was threefold: to consolidate the scattered provisions into one statute; to widen the coverage so that persons performing public duties outside the traditional civil service were included; and to make the trial of corruption cases faster and more effective by providing special judges, presumptions and enhanced punishments.

The courts have repeatedly described the mischief the Act addresses in strong terms. Corruption by a public servant is treated not merely as a wrong against the person from whom money is extracted but as a wrong against the public, because it converts an office held in trust into a source of private gain and undermines confidence in the administration. That characterisation explains several features of the statute which would be unusual in the ordinary criminal law: the statutory presumption in Section 20, the special rules of investigation, and the requirement that a trial be concluded within a stated period.

2. Extent and Application

1. Territorial extent. The Act extends to the whole of India. Following the reorganisation of 2019 it applies in Jammu and Kashmir as well, the separate State enactment having ceased to operate.
2. Extra-territorial application. It applies also to citizens of India outside India, so an Indian public servant or citizen may be proceeded against in respect of conduct abroad, the offence being deemed to have been committed in India for that purpose.
3. Persons covered. Public servants as defined in Section 2(c), which is much wider than the definition in the Penal Code, together with bribe givers under Section 8, commercial organisations under Section 9, persons in charge of them under Section 10, and abettors under Section 12.
4. Relationship with other laws. Section 28 provides that the provisions of the Act are in addition to and not in derogation of any other law, so a prosecution under the Act does not bar proceedings under the general criminal law, the money laundering legislation or the service rules.

3. The Definition of Public Servant

Section 2(c) is the gateway to the Act and is deliberately functional rather than institutional. It covers, among others, a person in the service or pay of the Government or remunerated by the Government for the performance of a public duty; a person in the service or pay of a local authority, a corporation established by or under a Central or State Act, a government company, or a body owned, controlled or aided by the Government; a judge and any person authorised to discharge adjudicatory functions; an arbitrator or other person to whom a matter is referred by a court or a public authority; an office-bearer of a registered cooperative society receiving financial assistance from the Government; an office-bearer of an employment exchange; a person holding office by virtue of which he is authorised to perform a public duty; and the chairman, member or employee of a service commission or board, or of a selection committee or examination authority appointed by one.

4. The Scheme of the Act

5. The Principal Offences in Outline

• Section 7. A public servant who obtains, accepts or attempts to obtain an undue advantage with the intention of performing a public duty improperly or dishonestly, or as a reward for such performance.
• Section 7A. Taking an undue advantage to influence a public servant by corrupt or illegal means or by exercise of personal influence.
• Section 8. Giving or promising to give an undue advantage to a public servant, with a protection for a person who was compelled to give and who reports the matter within seven days.
• Section 9. Liability of a commercial organisation where a person associated with it gives an undue advantage to a public servant to obtain or retain business, with a defence of adequate procedures.
• Section 10. Liability of a director, manager, secretary or other officer of a commercial organisation where the offence was committed with his consent or connivance.
• Section 11. A public servant obtaining a valuable thing without consideration, or for inadequate consideration, from a person concerned in a proceeding or business transacted by him.
• Section 12. Abetment of any offence punishable under the Act, whether or not the offence is committed in consequence of the abetment.
• Section 13. Criminal misconduct, now confined to fraudulent misappropriation of property entrusted to a public servant and to intentional illicit enrichment, that is being in possession of resources disproportionate to known sources of income.
• Sections 14 to 16. Habitual offenders, attempt, and the matters to which the court must have regard in fixing a fine.

6. The Procedural Architecture

1. Special judges. Section 3 requires the Government to appoint special judges to try offences under the Act, and Section 4 provides that such offences shall be tried by special judges only, with a direction that the trial be held on a day to day basis and concluded within two years, extendable but not beyond four years in all.
2. Investigating officer. Section 17 prescribes the minimum rank of the officer who may investigate: an Inspector of Police in the Delhi Special Police Establishment, an Assistant Commissioner of Police in the metropolitan areas, and a Deputy Superintendent of Police or an officer of equivalent rank elsewhere, unless a magistrate orders otherwise; and an offence of illicit enrichment is not to be investigated without the order of an officer of the rank of Superintendent of Police.
3. Prior approval. Section 17A, inserted in 2018, requires the previous approval of the appropriate authority before a police officer conducts any enquiry or investigation into an offence alleged to have been committed by a public servant where the offence relates to a recommendation made or a decision taken in the discharge of official functions, with an exception for a case involving arrest on the spot on a charge of accepting an undue advantage.
4. Sanction. Section 19 bars a court from taking cognizance of the principal offences without the previous sanction of the competent authority, which after 2018 extends to former public servants in respect of acts done while in office.
5. Presumption. Section 20 raises a presumption, where it is proved that a public servant accepted an undue advantage, that he did so with the intention required by Section 7, and the burden of displacing it lies on the accused.

7. Related Topics and Provisions